People v. Badillo CA2/2

Filed 2/10/22 P. v. Badillo CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B309152
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA298295)
v.
EMILIO CARRILLO
BADILLO,
Defendant and Appellant.
APPEAL from an order of the Los Angeles Superior Court,
Steven D. Blades, Judge. Affirmed.
John Lanahan, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Daniel Chang and David A. Voet, Deputy
Attorneys General, for Plaintiff and Respondent.
******
Emilio Carrillo Badillo (defendant) argues that the trial
court erred in denying his petition for resentencing under Penal
Code section 1170.95.1 There was no prejudicial error, so we
affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
In 2006, defendant and his wife were walking along the
side of a freeway interchange overpass after getting into a minor
auto accident. Defendant’s wife was carrying their two-year-old
daughter in her arms; she was also 22 or 23 weeks pregnant.
There was more than a 30-foot drop to the road below the
overpass. Without any warning, defendant shoved his wife
toward the overpass’s railing. Caught off guard, the wife was
unable to hold onto the toddler, who plummeted over the railing.
Defendant pushed his wife a second time, and she tumbled over
the railing to the road far below. The wife and daughter were
injured, but survived. The fetus died. (People v. Badillo (Sept.
29, 2009) B205547 [nonpub. opn.], at pp. 3-7.)
II. Procedural Background
A. Underlying conviction, sentence, and appeal
The People charged defendant with (1) the murder of the
fetus (§ 187, subd. (a)), (2) the attempted premeditated murder of
his wife (§§ 664, 187, subd. (a)), (3) the attempted murder of his
1 All further statutory references are to the Penal Code
unless otherwise indicated.
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daughter (§ 187, subd. (a)), and (4) child abuse (§ 273a, subd. (a)).
The People further alleged the defendant personally inflicted
great bodily injury on his wife and daughter. (§ 12022.7, subd.
(d)).
The matter went to trial. On the murder count, the jury
was instructed that it could convict only if defendant acted with
“malice aforethought,” which meant the intent to kill (“express
malice”) or with consciousness disregard of how his actions are
dangerous to life (“implied malice”). Because defendant acted
alone, the jury was not instructed on the theories of felony
murder (that is, a killing committed by someone else when a
defendant and that person are committing a felony together) or
natural and probable consequences (that is, a killing committed
by someone else when a defendant is aiding and abetting some
lesser crime). The jury convicted defendant of all charges and
found true all allegations. The trial court sentenced defendant to
two life sentences (for the second degree murder of the fetus and
the attempted premeditated murder of his wife), plus 12 years
(for the attempted murder of his daughter), but stayed the four-
year child abuse sentence under section 654. On appeal, we
affirmed defendant’s convictions but remanded so that the trial
court could impose a minimum sentence of 15 years to life for the
second degree murder of the fetus.
B. Petition for resentencing
In April 2020, defendant filed a form petition to vacate his
second degree murder conviction under section 1170.95.2
2 Defendant did not seek resentencing on the attempted
murder counts. Thus, the recent enactment of Senate Bill No.
775 extending relief under section 1170.95 to the crime of
attempted murder has no bearing on this appeal.
3
Without appointing counsel, the trial court summarily denied
defendant’s petition, reasoning that the “undisputed facts”
showed that defendant was not entitled to “relief as a matter of
law” because he was “the actual killer and was convicted of
murder on a theory of being the direct perpetrator[,] and not on a
theory of felony murder or a theory of natural and probable
consequences.”
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in summarily
denying his section 1170.95 petition. Because our consideration
of this argument involves questions of law and the application of
that law to undisputed facts, our review is de novo. (Tsasu LLC
v. U.S Bank Trust, N.A. (2021) 62 Cal.App.5th 704, 715.)
A person is entitled to relief under section 1170.95 if, as
relevant here, (1) “[a] complaint, information, or indictment was
filed against [him] that allowed the prosecution to proceed under
a theory of felony murder[ or] murder under the natural and
probable consequences doctrine,” (2) he “was convicted of
murder,” and (3) he “could not presently be convicted of murder
because of changes to Section 188 or 189 made effective January
1, 2019.” (§ 1170.95, subd. (a).) In January 2019, our Legislature
amended section 188 to provide that “in order to be convicted of
murder, a principal in a crime shall act with malice aforethought”
and that “[m]alice shall not be imputed to a person based solely
on his . . . participation in a crime.” (§ 188, subd. (a)(3).) Our
Legislature’s purpose was to ensure that “[a] person’s culpability
for murder [is] premised upon that person’s own actions and
subjective mens rea.” (Stats. 2018, ch. 1015, § 1(g).)
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As a threshold matter, we conclude that the trial court
erred in summarily denying defendant’s petition. In People v.
Lewis (2021) 11 Cal.5th 952 (Lewis), our Supreme Court held
that if a defendant files a facially compliant petition and requests
the appointment of counsel, the trial court must appoint counsel
and entertain further briefing regardless of whether the record of
conviction unequivocally demonstrates that the defendant is not
entitled to relief. (Id. at p. 964.) Here, defendant’s petition was
facially compliant and he requested counsel. Thus, Lewis
dictates the conclusion that the trial court erred in summarily
denying defendant’s petition.
However, this finding of error is the first step, not the last.
That is because Lewis went on to hold that an error in summarily
denying a section 1170.95 petition is harmless unless the
defendant can show “‘“it is reasonably probable that if [he or she]
had been afforded assistance of counsel [and briefing] his [or her]
petition would not have been summarily denied without an
evidentiary hearing.”’” (Lewis, supra, 11 Cal.5th at p. 974.)
We conclude that defendant was not prejudiced by the
summary denial in this case because the record forecloses
defendant’s entitlement to relief under section 1170.95 as a
matter of law, such that the appointment of counsel and further
briefing from that counsel would not have mattered. In assessing
whether a defendant seeking relief under section 1170.95 has
made out a prima facie case warranting an evidentiary hearing, a
trial court must take the petition’s factual allegations as true and
ask “‘whether the petitioner would be entitled to relief if [those]
allegations were proved.’” (Lewis, supra, 11 Cal.5th at p. 971.)
“‘However, if the record, including the court’s own documents
[from the record of conviction] “contain[s] facts refuting the
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allegations made in the petition,” then “the court is justified in
making a credibility determination adverse to the petitioner.”’”
(Ibid.)
Defendant has not made the requisite prima facie showing
of entitlement to relief under section 1170.95. This is true for two
reasons. First, the record establishes as a matter of law that
defendant was the actual killer. Defendant acted alone, so the
jury’s guilty verdict necessarily constitutes a finding that he
committed the murder. Along the same lines, because the jury
was never instructed on a natural and probable consequences
theory or felony-murder theory, his murder conviction could not
rest on either theory of vicarious liability; instead, the
instructions only permitted the jury to convict based on
defendant’s personal culpability. Second, the record establishes
as a matter of law that defendant acted while personally
harboring the necessary mens rea. Because the jury could convict
defendant of murder only if it found that he personally acted with
express or implied malice, its guilty verdict necessarily
encompasses such a finding of personally harbored malice.
Defendant offers two reasons why he was prejudiced by the
trial court’s summary denial of his section 1170.95 petition.
First, he argues that the trial court’s denial of relief is
infected with legally invalid reasoning because, at one point, the
court reasoned that defendant was not entitled to relief because
we—in our prior appellate opinion—had found “sufficient
evidence to convict [defendant]” of murder. Although the
existence of sufficient evidence to support a murder conviction
does not foreclose relief under section 1170.95 as a matter of law
(see, e.g., People v. Harris (2021) 60 Cal.App.5th 939, 958, review
granted April 28, 2021, S267802), any misstep in reasoning by
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the trial court in this case is of no concern because the trial
court’s ruling is nevertheless correct for the reasons we set forth
above (and which the trial court also cited). (Diaz v. Grill
Concepts Services, Inc. (2018) 23 Cal.App.5th 859, 874 [“Because
we review the trial court’s ruling and not its reasoning [citation],
any missteps in its reasoning are irrelevant.”].)
Second, defendant argues that we should hold this appeal
to await the outcome of our Supreme Court’s review in People v.
Strong (Dec. 18, 2020, C091162) (nonpub. opn.), review granted
March 10, 2021, S266606. Strong has no effect on our reasoning.
The issue in Strong is whether a murder conviction resting on a
natural and probable consequences theory (for which section
1170.95 relief is potentially available) is nevertheless ineligible
for relief under section 1170.95 relief as a matter of law due to a
jury’s finding of the special circumstance that the defendant
acted with implied malice that was made before our Supreme
Court tightened appellate review of that special circumstance in
People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016)
63 Cal.4th 522. Because, in this case, defendant’s jury was never
presented with a theory of liability affected by section 1170.95,
this case presents no issue of whether a jury finding can foreclose
relief under such a theory. Hence, Strong is irrelevant.
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DISPOSITION
We affirm the order denying relief under section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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